WiLLCox v. Cobb
| Citation | 197 S.E. 517,58 Ga.App. 39 |
| Decision Date | 01 June 1938 |
| Docket Number | No. 26817.,26817. |
| Parties | WILLCOX. v. COBB. |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
1. A want or absence of consideration in a negotiable promissory note executed under seal can be pleaded to a suit thereon by the original payee named in such note.
2. In the transcript sent up by the clerk as record, a paper which purports to be a copy of an agreed statement of facts can not be considered as record, the same not having been approved by the trial judge and made a part of the record, where it only appears that such agreed statement was signed by counsel and filed in the office of the clerk.
3. Where a case is submitted to the trial judge to pass upon all questions of law and fact without the intervention of a jury, and he renders judgment in favor of the defendant, this court will presume, in the absence of the evidence introduced before the judge and upon which he acted in rendering judgment, that he had before him ample evidence to support his judgment, and that therefore the judgment is not contrary to law or the evidence.
Error from City Court of Eastman; W. A. Wooten, Judge pro hac vice.
Action on a note by W. A. Willcox against William Cobb. Judgment for defendant, and plaintiff brings error.
Affirmed.
Thos. J. Sappington, of Eastman, for plaintiff in error.
R. B. Williams and A. Russell Ross, both of Eastman, for defendant in error.
This was a suit on a note. The defendant admitted the execution of the note, but denied liability on the ground that the note was without consideration. He alleged in his answer that prior to the date the note sued on was made he was indebted to the plaintiff on another note for approximately $1400 or $1500, and that for the purpose of paying off that indebtedness and others he applied to the Home Owners Loan Corporation for a loan, which loan was granted after creditors, among which the present plaintiff was one, had signed agreements to accept a less amount than their original debts, and to accept bonds of the Home Owners Loan Corporation; that the plaintiff signed an agreement on May 29, 1934, to accept such bonds in the sum of $1192.12, and did accept said bonds, and released the defendant from all other or further claim on account of the said indebtedness; that nevertheless the plaintiff importuned the defendant to make him the note sued on for the balance of the amount he originally owed him on the former note, and that without any further consideration the note was made; that when the plaintiff accepted the bonds in full settlement of his former note and signed the release there was an accord and satisfaction of that obligation, and that the note sued on is a nudum pactum and without consideration, without binding force and effect, and that the plaintiff has no right to sue on the note because the same was procured by the plaintiff in direct violation of the creditors' agreement which he made to the Home Owners Loan Corporation to accept their bonds in full settlement of the former note, and that any judgment on this note would jeopardize their security pledged to pay the security deed made by the defendant to said corporation. The plaintiff demurred to the defendant's plea on the grounds: (1) that it set out no legal defense; (2) that it was an attempt to avoid a sealed instrument for want of consideration, contrary to the laws of this State. The court overruled the demurrer. The case was submitted to the court, without the intervention of a jury, on an agreed statement of facts, and the court's finding was in favor of the defendant. The plaintiff in a direct bill of exceptions excepted to the ruling on the demurrer and to the judgment finding in favor of the defendant.
The court properly overruled the demurrer. It will be observed that the defendant set up in his plea that the plaintiff signed an agreement to accept bonds in the sum of $1192.12, and that he did accept the bonds and released the defendant from all other and further claim on account of said indebtedness, and that the note was without consideration; that when the plaintiff accepted the bonds in full settlement of the former note there was an accord and satisfaction of that obligation and that the note sued on was a nudum pactum. These allegations set up a defense good against general demurrer. But the plaintiff contends that the want or lack of consideration in a promissory note executed under seal cannot be pleaded as a defense to a suit thereon by the original payee. His counsel cites certain cases, among them Smith v. Smith, 36 Ga. 184, 191, 91 Am.Dec. 761; Sivell v. Hogan, 119 Ga. 167, 46 S.E. 67; Van Dyke v. Van Dyke, 123 Ga. 686, 690, 51 S.E. 582, 3 Ann. Cas. 978, and Slaton v. Fowler, 124 Ga. 955, 53 S.E. 567, in support of this contention, but none of these cases decides this particular question. For instance, it was said in the Sivell Case, supra (page 68), "We are not, however, to be understood as definitely committing ourselves at this time to the proposition that even want of consideration cannot be pleaded to a promissory note under seal, though this would seem to be true." However, this question has been directly and definitely decided, contrary to the plaintiff in error's contention, by both this court and the Supreme Court. In Lacey v. Hutchinson, 5 Ga.App. 865, 64 S.E. 105, this question was dealt with by Judge Powell in an able and exhaustive opinion, and the first headnote in that case holds: "It is a good defense to an action on a negotiable promissory note under seal in the hands of the original payee that it was executed...
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